On March 9, 2005, US EPA issued its long-awaited response to the aviation industry's repeated inquiries and requests for clarification of EPA's regulation of aviation refueler trucks under the Spill Prevention Control and Countermeasures (SPCC) rule found in 40 CFR Part 112. The response made clear that the Agency is now requiring secondary containment, which will have a major financial impact on the aviation industry, as airlines, FBOs and other fuel suppliers work with airport general managers to install secondary containment in refueler truck parking areas or demonstrate to EPA's satisfaction that such secondary containment is impracticable.
When we examine the purpose and intent of the SPCC regulations in the context of the unique airport environment, it appears that EPA has stretched its authority to regulate mobile refuelers by re-defining them. A history of the rule's application to mobile refuelers and the inherent impracticability of requiring secondary containment in the airport operations area, make it clear that EPA's decision is ill-advised. However, EPA has emphasized that there is a great deal of flexibility in engineering solutions for secondary containment to prevent oil discharges.
History and Purpose of the SPCC Rules
The SPCC program is administered by EPA's Office of Solid Waste and Emergency Response. It requires facilities that store more than minimal amounts of oil (typically more than 1,320 gallons of oil in above ground storage containers) to prepare a SPCC plan which outlines how the facility will prevent oil spills from certain oil tanks and oil filled equipment. The stated purpose of the SPCC regulations are to prevent the discharge of oil from oil storage facilities into navigable waters and to ensure effective responses to such discharges. Even though a 1971 Memorandum of Understanding (MOU) between DOT and EPA exempted "transportation-related facilities" from regulation under the SPCC rule, the SPCC regulations appear applicable to transportation service providers like airports, airlines, FBOs and fuel providers. This is because under the terms of the MOU, the definition of transportation-related facilities refers only to highway vehicles and railroad cars that are used for the transportation of oil in interstate or intrastate commerce.
A Rose by Any Other Name
Specific provisions of the SPCC regulations require facilities to "position or locate mobile or portable oil storage containers to prevent a discharge…" In addition, mobile or portable oil storage containers are required to have "secondary containment, such as a dike or catchment basin, sufficient to contain the capacity of the largest single compartment or container with sufficient free board to contain precipitation." (These requirements are found in 40 CFR 112.8(11).)
Engineers, environmental personnel and aviation consultants implementing SPCC regulations never dreamed that fuel delivery vehicles used to fuel aircraft would be considered "mobile or portable oil storage containers" subject to the secondary containment requirements. After all, the only purpose of airport refueler trucks is to deliver oil, not store it.
In 2001-2002, however, much to the surprise of the industry, EPA Regional Offices began issuing Notices of Violation to FBOs, fuelers and airlines for failing to install secondary containment around their parked mobile refuelers, even when refuelers were "parked" on the ramp or in the airport operations area. In defense, the recipients of the Notices of Violation argued that mobile refuelers were not mobile storage tanks subject to such secondary containment requirements. They also argued that EPA had developed a new interpretation of the meaning of "mobile and portable" storage tanks without the industry's knowledge, or the required notice and comment rulemaking. Even more important was the fact that containment for trucks was impracticable in the airport environment, where berms or containment basins would severely impede fueling efforts and aircraft movement. In addition, aside from one or two rare instances of intentional employee malice, no one within the industry could recall a situation where a parked mobile refueler truck sprung a leak. In fact, most spills occur during truck to aircraft fuel transfers, when operators are present and can respond appropriately to the spill.